Guzman v. Commonwealth

CUNNINGHAM, J.,

Concurring:

I concur with the majority opinion. Our holding today is easy for, law enforcement to follow. When you have consent to enter into one’s living room, you are not invited into the kitchen, or the bedroom, or the basement. If you do not deem it safe to enter the living room, do not enter. In a “knock and talk” conducted in such ominous situations, one might consider continuing the investigation on the front porch.

I am compelled to write further, however, to address a dormant issue lying near the surface in this case which has the potential of appearing before us in a much more ominous posture. The majority chooses not to address it because it was not necessary for our resolution of the case. However, I wish to address it in order to both warn and guide law enforcement about a practice that I suspect is widespread, and one that in the future could be an exploding land mine. Here, we are talking about the suppression of drugs. When the issue appears squarely before us in full bloom, it could mean the suppression of a murder weapon. Hopefully, this writing will help us avoid that more critical situation.

When the officer asked Guzman for consent to search the entire apartment after finding the residue-laden spoon in the kitchen, Guzman inquired as to what would happen if she failed to consent to the *810 search. The officer informed her that one of them would remain at the scene while the other one would go and get a search warrant. In other words, the officer assured Guzman that the apartment would be seized until a warrant could be obtained. With that revelation, Guzman consented to the search.

“Freezing the scene” while an officer goes and obtains a search warrant is fraught with constitutional problems. In this instance, with the evidence found in the kitchen being fruit of the poisonous tree, the officer would not have had sufficient basis to obtain a search warrant. Neither would the officer have had probable cause to seize the property.

Misinformation or deception by a law enforcement officer for purposes of obtaining consent to search will not be upheld. For instance, if an officer falsely assures a homeowner that he possesses a search warrant — when he does not — in order to gain consent to search, said search will be considered coercive and lacking sufficient consent. Bumper v. North Carolina, 391 U.S. 543, 549-50 , 88 S.Ct. 1788 , 20 L.Ed.2d 797 (1968).

Also, we have held that deception used by a police officer in obtaining a waiver of constitutional rights has been considered coercive for purposes of gaining consent. Krause v. Commonwealth, 206 S.W.3d 922 (Ky.2006).

The practice by law enforcement officers of “freezing the scene” while awaiting a search warrant has become more prevalent and consequently, addressed more frequently by courts in the last ten to fifteen years. This practice has become widely accepted, but several key elements must be present for the seizure to be reasonable. Simply put, “freezing the scene” is reasonable only if the police have probable cause.

In the case of Illinois v. McArthur, 531 U.S. 326, 331 , 121 S.Ct. 946 , 148 L.Ed.2d 838 (2001), the United States Supreme Court held that, under the Fourth Amendment, it may be reasonable for police to prevent a person from entering an area while a search warrant is sought. In that case, the police restrained the defendant from re-entering his home after they had escorted his wife to the residence to remove some of her belongings and she informed the officers that there were drugs inside. The officers seized the property while a search warrant was being obtained and kept the defendant from re-entering the trailer. Among other factors which the court found was necessary for such an imposition was the existence of probable cause.

Seventeen years earlier, the United States Supreme Court in Segura v. United States, 468 U.S. 796 , 104 S.Ct. 3380 , 82 L.Ed.2d 599 (1984), determined that the police, armed with reliable information that an apartment contained drugs, might lawfully seal the apartment off from the outside restricting entry into the apartment while waiting for a search warrant. In other words, that case afforded the right of law enforcement to seize property. It too, like McArthur , required the existence of probable cause.

Our nation’s highest court has acknowledged that there is a distinction in the constitutional standards between a search and a seizure. Said the United States Supreme Court in Segura :

A seizure affects only the person’s pos-sessory interests; a search affects a person’s privacy interests. Recognizing the generally less intrusive nature of a seizure, the Court has frequently approved warrantless seizures of property, on the basis of probable cause, for the time necessary to secure a warrant, where a warrantless search was either held to be *811 or likely would have been held impermissible. (Emphasis added).

Id. at 806 , 104 S.Ct. 3380 (internal citations omitted).

The Court, in Segura , describes this exact situation in its holding.

Specifically, we hold that where officers, having probable cause, enter premises, and with probable cause, arrest the occupants who have legitimate possessory interests in its contents and take them into custody and, for no more than the period here involved, secure the premises from within to preserve the status quo while others, in good faith, are in the process of obtaining a warrant, they do not violate the Fourth Amendment’s proscription against unreasonable seizures.

Id. at 798 , 104 S.Ct. 3380 .

We can think of other examples. For instance, where a chest has been removed from a motor vehicle based on probable cause and the driver and occupants of the vehicle have been arrested and taken into custody, there is probable cause but there no longer exists exigent circumstances. The chest can be seized, taken to the police station, and a warrant obtained to search its contents. That’s because the possessory interest requires only the probable cause to seize; whereas, the privacy interest involved in a warrantless search requires both probable cause and exigent circumstances. In other words, while a warrantless search could not be conducted without probable cause and exigent circumstances, a seizure can be conducted if there is probable cause but not exigent circumstances when the scene is frozen while a search warrant is obtained.

This Court has not squarely confronted the constitutional ramifications of “freezing the scene” in a search situation. Our neighboring state of Tennessee has. In the case of U.S. v. Ervin, the officers were without probable cause to believe the residence contained contraband at the time of the seizure. 2010 WL 200799 (M.D.Tenn. Jan. 14, 2010). Also, in the case of Smith v. State, 904 So.2d 534, 537 (Fla.Dist.Ct. App.2005), the Florida District Court of Appeal held that it was a violation of the Fourth Amendment where sheriffs deputies, without probable cause, secured a dwelling and prevented a defendant from entering his home and, in effect, seized that property.

The common thread running through all seizure cases, however, is the requirement for the element of probable cause which, in this instance, was missing. The residue-laden spoon was found during an impermissible sweep of the apartment and was, therefore, “fruit of the poisonous tree.” It is longstanding constitutional law that probable cause cannot be established by “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 484-485 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963); see also Nardone v. United States, 308 U.S. 338, 340-342 , 60 S.Ct. 266 , 84 L.Ed. 307 (1939). In this case, had the discovery of the residue-laden spoon been made during a consensual search, there would have existed probable cause and exigent circumstances since the occupants had not been arrested and removed from the scene. This would entitle law enforcement officers to conduct a warrantless search or, if they chose the precautionary route, a seizure of the apartment while a warrant was obtained.

We are careful to point out, however, that a threat by law enforcement officers to seize the apartment and forestall an actual search until a warrant is obtained is improper without probable cause. Any consent obtained this way shall be considered invalid and contraband found pursuant to the search inadmissible.

*812 In summary, law enforcement should take away two important learning points from this case. First, unless there is a warrant, or probable cause and exigent circumstances, officers are limited to entering only the area to which consent is given. Secondly, before an officer makes assurances that the house or apartment will be seized while awaiting a search warrant, there has to be probable cause. Otherwise, any consent obtained by this improper admonition will be considered invalid, and any evidence discovered as a result of the tainted consent shall be suppressed.

SCHRODER and VENTERS, JJ„ join this concurring opinion.